Manoj S/O Shreeram Ganveer vs Smt. Urmila W/O Manoj Ganveer
2017 Latest Caselaw 981 Bom

 2303FCA85.15-Judgment                                                                        1/12


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.


                  FAMILY COURT APPEAL NO.  85  OF    2015


 APPELLANT :-                         Manoj  S/o  Shreeram  Ganveer,  Aged about
 Org.Petitioner                       43 years, Occ-Service, R/o Room No.1, A-1
                                      Wing,   Twinkle   Apartment,   Gaodevi   Nagar,
                                      Katemaniwali, Kalyan (East), District Thane.


                                         ...VERSUS... 

 RESPONDENT :-                        Smt.  Urmila   W/o    Manoj   Ganveer, Aged
 Org.Respondent                       about   43   years,   Occ-Service,   R/o   C/o
                                      P.M.Gedam,   Savitribai   Fuley   Nagar,
                                      Tathagat   Gautam   Buddha   Marg,   Bhagwan
                                      Nagar, Nagpur-27. 


 ---------------------------------------------------------------------------------------------------
                     Mr. Nitin Jachak, counsel for the appellant.
                     Mr.S.K.Malode, counsel for the respondent.
 ---------------------------------------------------------------------------------------------------


                                        CORAM : SMT. VASANTI    A    NAIK & 
                                                    V.M.DESHPANDE,   JJ.

DATED : 23.03.2017

O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)

By this family court appeal, the appellant-husband

challenges the judgment of the Family Court, Nagpur dismissing the

petition filed by the husband for a decree of divorce on the ground of

cruelty and desertion.

2303FCA85.15-Judgment 2/12

2. Few facts giving rise to the family court appeal are stated

thus :-

The appellant-husband was married with the respondent-

wife at Nagpur on 26/10/1997 as per the rites and customs prevailing

in their community. After the marriage, the parties started residing

together in the matrimonial house at Kalyan and a son and a daughter

were born from the wedlock. According to the husband, the wife

behaved well for about a year from the marriage but thereafter she

started behaving illogically and adamantly. According to the husband,

the wife started harassing and torturing the husband physically and

mentally. Since the wife had left the matrimonial home on 30/08/2003

after raising a quarrel on a petty issue, the husband filed proceedings

for restitution of conjugal rights but the said proceedings were

dismissed. Since the respondent-wife was not ready to cohabit with the

husband, the husband filed the proceedings for a decree of divorce on

the ground of cruelty and desertion. It was pleaded by the husband in

the said petition that the wife was not desirous of cohabiting with the

husband and demanded a divorce on many occasions. It is pleaded that

the wife had made various false complaints against him before different

authorities and had defamed the husband. It is pleaded that due to the

whimsical behaviour of the wife, the wife had made the life of the

husband miserable and that he was forced to lodge police report against

the wife. It is pleaded that the wife had also lodged a false police report

2303FCA85.15-Judgment 3/12

against the husband under section 498-A of the Penal Code. It is stated

that after levelling serious allegations against the husband and creating

a scene over a petty issue on 30/08/2003, the wife left the husband

along with the children, never to return to the matrimonial home. It is

pleaded that though the husband and his family members tried to

reconcile the matter, the wife was not ready to mend her ways. It is

pleaded that earlier also, the wife had left the house in the year 1999

and the matter was settled with the help of elders. It is pleaded that the

wife had withdrawn from the society of the husband without any just

and reasonable excuse and hence, the husband was entitled to a decree

of divorce on the ground of cruelty and desertion.

3. The wife filed the written statement and denied the claim

of the husband. All the adverse allegations that were levelled against

the wife by the husband were denied by her. The wife pleaded in the

specific pleadings that the husband was in the habit of establishing

extra marital relationship with different ladies, who became friendly

with him and he also had an extra marital relationship with the

maidservant in the house. The wife pleaded that whenever she asked

the husband about his extra marital relationships, the husband used to

harass and ill-treat her. The wife stated that the wife was fed up with

the objectionable behaviour of the husband. The wife further pleaded

that she had reliably learnt that the husband had married one of his

2303FCA85.15-Judgment 4/12

friends and some issues were born from the said relationship. It is

pleaded that the friend of the husband is residing with the husband

under one roof as his wife. The wife sought for the dismissal of the

petition filed by the husband.

4. On the aforesaid pleadings of the parties, the Family Court

framed the issues. The parties examined themselves and closed the

evidence on their side. The parties did not examine any other witness

in support of their respective cases. On an appreciation of the material

on record, the Family Court dismissed the petition filed by the husband

for a decree of divorce after holding that the husband had failed to

prove that the wife had treated him with cruelty and that she had

deserted him without any just or reasonable excuse. The judgment of

the Family Court is challenged by the husband in this family court

appeal.

5. Shri Jachak, the learned counsel for the husband,

submitted that the Family Court committed a serious error in holding

that the wife had not treated the husband with cruelty. It is stated that

the wife had made reckless allegations against the husband in the

written statement and failed to prove the same. It is stated that the

wife had clearly stated in paragraph No.11 of the written statement that

the husband had a habit of establishing extra marital relationship with

2303FCA85.15-Judgment 5/12

several women that came his way and was also having an extra marital

relationship with the maid in the house. It is stated that the wife had

also stated in the written statement that the husband had married his

friend and some issues were born to the husband from the said

relationship. It is stated that the reckless allegations made against the

husband are bald and no details of the relationship of the husband with

any of the woman is mentioned in the written statement. It is stated

that if the husband had relationship with several women and the wife

knew about the said relationships including his marriage with one of his

friends, the wife should have named at least a few of the women with

whom he had a relationship or the woman with whom he had allegedly

married and had issues. It is stated that it is well settled that levelling

of false and reckless allegations in regard to the husband's character

and failing to prove the same would tantamount to cruelty. It is

submitted that the Family Court failed to consider this aspect of the

matter in the right perspective while dismissing the petition filed by the

husband. It is stated that since the wife had made similar allegations in

the written statement filed in the proceedings filed by the husband for

restitution of conjugal rights, the Family Court could not have held that

the said allegations cannot be considered in the present petition. It is

submitted that two letters are produced by the wife at exhibits-42 and

43 that are addressed by the wife to her father alleging that the

husband was a womanizer and was ill-treating her. It is stated that

2303FCA85.15-Judgment 6/12

these documents were not tendered by the wife in the proceedings filed

by the husband for restitution of conjugal rights and on the basis of the

new material that was placed before the Family Court in the present

proceedings, the Family Court ought to have granted a decree of divorce

in favour of the husband after holding that the conduct on the part of

the wife of levelling reckless allegations in respect of the character of

the husband and failing to prove the same would tantamount to cruelty.

The learned counsel relied on the judgments, reported in 2012 (1)

Mh.L.J 43 (Ramesh Laxman Sonawane v. Meenaxi Ramesh

Sonawane), 2012 (5) Mh.L.J. 298 (Bhavana N. Shah v. Nitin

Chimanlal Shah) and 2015 (6) Mh.L.J. (Lilesh w/o Vinod Agrawal v.

Vinod Ramrichpal Agrawal) to substantiate his submissions.

6. Shri Malode, the learned counsel for the wife, supported

the judgment of the Family Court. It is submitted that a finding of fact

is recorded by the Family Court in the proceedings filed by the husband

for a decree of restitution of conjugal rights that the wife had sufficient

cause to leave the company of the husband. It is submitted that in the

present proceedings also, the Family Court has rightly rejected the

prayer of the husband for a decree of divorce as similar allegations were

made by the wife against the husband in the earlier proceedings and in

those proceedings, a decree of restitution of conjugal rights is not

passed in favour of the husband. It is submitted that in the

2303FCA85.15-Judgment 7/12

circumstances of the case, the Family Court has rightly dismissed the

petition filed by the husband.

7. Before framing the points for determination in this case,

we would like to make a note of what transpired in the court on two

earlier dates of hearing. This family court appeal was called for hearing

on 21/03/2017 and 22/03/2017. The parties had agreed that the

matrimonial ties could be severed on certain conditions. In the morning

session on 22/03/2017, both the parties had agreed that the marriage

solemnised between the parties could be dissolved if the husband pays a

sum of Rs.10,000/- per month towards maintenance for his daughter,

pays the education fees for his son, who is taking education in the

engineering course and pays 50% of the marriage expenses of the

daughter at the time of her marriage, as the wife and the husband are

both working as stenographers in different departments of the

government. We would like to mention that the compromise pursis was

prepared with the joint efforts of the counsel for the husband and the

wife but in the afternoon session, when the compromise was about to

be recorded, the wife, who was present in the court on both the dates of

hearing, backed out and stated that she is ready for a decree of divorce

only if the husband pays a sum of Rs.15,00,000/- to her. Since the wife

and the husband are both working as stenographers and it is likely that

there is not much of a difference in the pay scale of both the parties, the

2303FCA85.15-Judgment 8/12

husband was not in a position to shell out the said amount and the

compromise did not materialise. We have, however, placed the copy of

the compromise pursis that is prepared by the counsel for both the

parties, on record.

8. Be that as it may, on a perusal of the record and

proceedings and on hearing the learned counsel for the parties, it

appears that the following points arise for determination in this family

court appeal.

(I) Whether the husband proves that the wife had deserted

the husband without just or reasonable excuse?

(II) Whether the wife had treated the husband with cruelty?

(III) Whether the husband is entitled to a decree of divorce?

(IV) What order?

9. To consider the aforesaid points for determination, it

would be necessary to consider the pleadings of the parties, which we

have narrated in the earlier part of the judgment in detail. It would

therefore not be necessary to reiterate the pleadings of the parties. The

husband has clearly stated that the wife was not only harassing the

husband mentally and physically by the acts, as pleaded in the petition

but has further stated that the wife had levelled several reckless

2303FCA85.15-Judgment 9/12

allegations against the husband and that has caused great agony to the

husband. It would be conspicuous to reiterate the pleadings of the wife

in respect of the illicit relationship of the husband with several ladies.

The wife had stated in paragraph 11 of the written statement that the

husband was in the habit of establishing extra marital relationship with

different ladies with whom he became friendly very easily. The wife has

further pleaded that the husband had an extra marital relationship with

the maidservant in the house and when the wife was not in the house,

she was always worried that the husband would be involved in some

illicit act. The wife has further stated in the written statement that the

husband had married one of his friends and some issues are born from

the said relationship. The husband has stated in his evidence that the

aforesaid allegations of the wife, have caused great mental agony to the

husband and has lowered his image in the society. The wife reiterated

the statements in her pleadings, in her evidence on affidavit. It is

conspicuous to note that though the wife had stated that the husband

had established extra marital relationship with several women, not a

single woman is named by the wife in the written statement. If the

husband really had established extra marital relationship with several

women, the wife would have surely been in a position to name at least a

few of them. The wife has gone to the extent of saying that when she

was not in the house, the husband established an extra marital

relationship with the maidservant. The maidservant is however, not

2303FCA85.15-Judgment 10/12

named. It is also not stated as to how the wife became aware that the

husband was having extra marital relationship with so many women.

Except the aforesaid bald statements, there is nothing on record to show

as to how the wife had secured the knowledge about the extra marital

relationship of the husband with the other women. If a wife is aware

about the extra marital relationships of her husband and if she is sure

about the existence of the same, the wife would surely name the women

with whom her husband has an extra marital relationship. In this case,

the wife does not only allege extra marital relationship of her husband

with one woman but alleges extra marital relationship of her husband

with several women, without naming a single woman. The wife has also

gone to the extent of saying that the husband had an extra marital

relationship with the maidservant and has also married one of his

friends (who is not named) and has some issues from the said

relationship. If the wife was aware that her husband had married

another woman during the subsistence of her marriage, she would have

surely named the woman with whom the husband had married and

would have also informed the court as to how she had secured the

knowledge about the relationship, or whether she had personally

witnessed any incident. We have held that earlier, and we reiterate that

levelling of reckless allegations pertaining to the character of a spouse

and failing to prove the same would tantamount to cruelty. In this case,

we find that the wife had levelled reckless allegations against the

2303FCA85.15-Judgment 11/12

husband in the letters, at exhibits-42 and 43 and has failed to prove the

allegations. The Family Court was not justified in refusing to grant a

decree of divorce in favour of the husband on the ground of cruelty by

holding that similar type of allegations were made by the wife against

the husband in the proceedings filed by him for restitution of conjugal

rights. Even if that is so, the Family Court had not decided the question

whether the husband had illicit relationship with other women in the

petition filed by the husband for restitution of conjugal rights. Also,

some new material is placed by the wife on record in which more

reckless allegations are levelled by her against her husband. The Family

Court, in the circumstances of the case, ought to have granted a decree

of divorce in favour of the husband on the ground of cruelty. It is held

by this court time and again that unsubstantiated allegations by a wife

that the husband is having an extra marital relationship, constitute

mental cruelty. It would be worthwhile to refer to the judgments

reported in 2012 (5) Mh.L.J. 298, 2015 (6) Mh.L.J. 536 and 2012

(1) Mh.L.j. 43 in this regard. The Family Court failed to consider the

law laid down by the Hon'ble Supreme Court and this court in several

decisions before dismissing the petition filed by the husband. The

Family Court has not appreciated the evidence in the right perspective

and has not applied the correct position of law to the facts of the case

while deciding the petition filed by the husband. Though we find that

the husband has proved that the wife has treated him with cruelty, we

2303FCA85.15-Judgment 12/12

are not inclined to accept the case of the husband that the wife has

deserted him without any just or reasonable excuse. On this issue a

finding of fact is recorded against the husband in the proceedings filed

by him for a decree of restitution of conjugal rights. Hence, though the

husband has failed to prove that the wife has deserted him without any

just or reasonable excuse, the husband would be entitled to a decree of

divorce on the ground of cruelty.

10. Hence, for the reasons aforesaid, the family court appeal is

allowed. The judgment of the Family Court is set aside. The petition

filed by the husband is allowed and the marriage solemnized between

the parties on 26/10/1997 is dissolved by a decree of divorce under

section 13(1)(i-a) of the Hindu Marriage Act. In the circumstances of

the case, there would be no order as to costs.

                        JUDGE                                              JUDGE 


 KHUNTE